형법 제37조 후단의 사후적 경합범에 관한 몇가지 쟁점 검토

When a defendant commits multiple crimes and is tried in one proceeding by consolidating the cases of those crimes, he is sentenced according to the former part of the article 37(concurrent crimes). When he is tried on those crimes at different times in different proceedings and a judgement in one of those proceedings is finalized with an imprisonment without prison labor or a heavier punishment, he is sentenced on the other crimes according to the latter part of the article 37. The amount of the unlawfulness of the concurrent crimes shall be assessed samely whether the concurrent crimes is sentenced at the same time or at the different times, which means the punishment shall be the same irrelevant of the application of the former or the latter part of the article 37. But Supreme Court, when dealing with the punishment of the latter part of the article 37, decided that the court is not bound to the limit of the article 38, which is applied when the multiple crimes is dealt with in one proceeding(2006do8376). Supreme Court decided, when the judgement, which makes some of the multiple crimes subject to the latter part of the article 37, is a suspension of execution of sentence(article 62), the court cannot suspend the imposition of sentence on the crimes subject to the latter part of the article 37(2010do931). Supreme Court decided when one judgement(A) on a crime is finalized and the crime is dealt with according to the latter part of the article 37 by the other finalized judgement, the crimes committed before and after the judgement(A) cannot be concurrent crimes(2011do2351). Supreme Court decided the court cannot mitigate the punishment below the limit of the article 55(2017do14609 en banc). But the above decisions of Supreme Court cannot be agreed. With some exceptions, the defendant shall not be treated better or worse even when he is tried according to the latter part of the article 37(partial opposition to 2006do8376). Suspension of imposition of sentence shall be allowed when the judgement, which makes some of the multiple crimes subject to the latter part of the article 37, is a suspension of execution of sentence(article 62), because, if the court can exempt the punishment on a crime, it can be deduced that the court have the authority to impose the heavier punishment like the suspension of imposition of sentence(opposition to 2010do931). A judgement(A) on a crime is finalized and the crime is dealt with according to the latter part of the article 37 by the other finalized judgement, which is before the judgement(A) by time, the crimes committed before and after the judgement(A) can be concurrent crimes because the judgement(A) cannot function as a judgement which can block the constitution of the concurrent crimes(opposition to 2011do2351). Even the same word is used in different parts of Criminal Law, the meaning of that word can be interpreted differently by the context where the word is used(opposition to 2017do14609 en banc)